Saturday, June 17, 2017

Just because someone is an authority on a subject does not mean that person is always right about things related to that subject. Thus, one may occasionally find oneself in the position of wanting to argue against something an authority says about their special subject. This phenomenon has become all the more common since the advent of social media but has occurred since time immemorial. In the 19th and 20th centuries, a common way to rebut an expert was through newspaper op-eds.

The op-ed rebuttal is still alive and well, as seen in this short article. OK, maybe "well" isn't quite correct, but it's extant and frequent. In that article, the author, Stephen W. Ball, is replying to an article written by Ken White (@Popehat), who is considered something of an authority on the First Amendment. At the very least, he is known within First Amendment circles as someone who knows what he's talking about.

Go ahead and click through and read Ball's article. It's only 4 short paragraphs long, and only three of those paragraphs are substantive.

Done? Good. What did you think of it? Cuz I thought it was shit.

Does the author bring up some good points? I mean, like, kinda. He's not entirely wrong in what he says, but damn does he not know how to make a good argument.

When you argue against an authority about their subject of expertise, you need to make sure you fully explain yourself. It is nowhere near enough to simply say, "well, actually, you're wrong," and leave it at that. No one with a head on their shoulders will believe you. You must fully explain your position and cite direct evidence or other authorities. You must be persuasive.

Ball's entire article is just a series of one-sentence points saying, "well, actually, White is wrong about that," and never going on to explain how White is wrong. It's as though he brought up some talking points and then wanted to sit back and let the people in the comments section make his arguments for him.

I think I'll just go ahead and do that. I'll make his arguments for him. Sounds fun. Even better, I'll point out why his arguments are stupid, and maybe we'll all learn something.

One: "Well, actually, Schenck is still good law."

Well, actually, pretty much everyone thinks you're stupid for trying to make this argument. Is he right? Only in a very technical sense. I guarantee you will not see Schenck cited as anything other than historical curiosity in a SCOTUS decision anytime soon (unless they decide to finally get around to explicitly abrogating it).

Here's the argument he should have made when he decided going down this path was a good idea (note: I mostly pulled these arguments from Wikipedia, which I suspect is where Ball learned everything he knows about Schenck anyway):
"Schenck is still good law because the Supreme Court has never explicitly overturned it. Even Holmes' dissent in Abrams wouldn't have overturned Schenck, but instead, would have differentiated it. Furthermore, the same line of reasoning used to decide Schenck was used in Brandenburg v. Ohio, which established the current standard for incitement. Presently, Schenck appears to still be good law for matters concerning national security, as shown in the reasoning for Holder v. Humanitarian Law Project . According to Shepard's, Schenck was cited positively in an appellate decision as recently as 2010."

That's the best I can do in making that argument without spending far too much time on it. It's better than what Ball said because at least I included the word "because" and some sort of backing.

Is it an oversimplification of Brandenburg? Yes. Brandenburg didn't follow Schenck, it just considered the same sorts of things. In fact, Brandenburg explicitly rejected the "clear and present danger" test used in Schenck.

Does it matter in the slightest whether Holmes would have overturned Schenck in his Abrams dissent? Not really. It's a dissent.

Was Schenck actually cited as precedent in Humanitarian Law Project? No. The argument that these cases are related comes directly from Wikipedia and is interesting, but not entirely honest. While Humanitarian Law Project might have rejected a specific intent requirement for sedition supporting terrorism, it didn't do so by relying on Schenck. The only mention of Schenck in that case is in Breyers' dissent. There, he cites Schenck once as an example of a case badly decided due to a perceived national security threat:

I am not aware of any case in this Court--not Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925), not Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470, 17 Ohio L. Rep. 26, 17 Ohio L. Rep. 149 (1919), not Abrams, 250 U.S. 616, 40 S. Ct. 17, 63 L. Ed. 1173, not the later Communist Party cases decided during the heat of the Cold War--in which the Court accepted anything like a claim that speech or teaching might be criminalized lest it, e.g., buy negotiating time for an opponent who would put that time to bad use.

Was that 2010 decision (the 9th Circuit's opinion in US v. Alvarez) really upholding Schenck? Not really. Alvarez was about the Stolen Valor Act, which made it a crime to falsely claim military honors. The court cited Schenck as upholding the idea that speech may be criminalized if it poses a "clear and present danger." I don't know what clerk decided that was still a test that courts use for anything or why no one caught that error, but Brandenburg explicitly killed the "clear and present danger test." Importantly, for all its positive discussion of Schenck, the 9th Circuit nonetheless found that Act to be unconstitutional under the First Amendment. Also importantly, Alvarez was granted certiorari to the Supreme Court, which affirmed the 9th Circuit in an opinion which makes no mention of Schenck whatsoever. In fact, according to Shepard's, the Supreme Court has never cited Schenck positively. Now, of course, Shepard's has its flaws and its limits, but as a first step in research, and considering how old the case is, that should be a good sign that Schenck isn't exactly a highly regarded case.

Does it matter at all that a Circuit Court treated Schenck positively? Maybe. It's evidence that it's still seen as an important decision by some judges, or at least by some misguided clerks. However, the fact that the court spent so much time discussing Schenck is odd, to say the least. I'll just quote the dissenting opinion here:

The majority is wrong. The Court has never used the "clear and present danger" test to determine whether a category of speech is protected in the first instance. Much to the contrary, the Court has specifically held that the existence of a "clear and present danger" of harm is irrelevant in the context of unprotected categories of speech. ...Schenck dealt with a content-based restriction of a category of speech that would now be considered clearly entitled to First Amendment protection.

Ultimately, though, no one who knows what they're talking about (such as Ken White) views Schenck as good law. And even if one finds a situation where it could be considered "good law," in pretty much every instance there is a better case to be found.

Two: "Actually, true speech can be illegal."

The preferred word is "unprotected," not "illegal," but we get the point. And he's right. When it comes to determining if certain speech is protected, truth is not always a determining factor. Ball backs up this claim by paraphrasing an example from John Stewart Mill: "It is still criminal to incite mob violence or carnage at the house of a corn dealer even if the speech there is true." That's nice that he's reading Mill, but that's not a terribly good example to back up his argument. There have been some small but important changes to the concept of incitement since Mill's time. I simply cannot imagine a scenario where someone says a series of true statements which will cause a group of people to attack a corn dealer or burn down his house or whatever. Maybe the corn dealer was a really nasty guy, I dunno. But, for it to be incitement nowadays, the person charged with incitement would have to have spoken an opinion or a command at some point indicating a desire to have the mob attack the corn dealer. Such a statement would necessarily go beyond the realm of factual statements that can be described as true or false.Here's the argument he should have made: "It overly simplifies the law to say that true speech is always protected. There are several instances where one may speak only truthful, factual statements and their speech still be unprotected. For example, Public Disclosure of Private Facts may involve speech that consists entirely of truthful statements, and yet that speech would be unprotected. Also, certain content-neutral regulations ban truthful speech along with all other types of speech, such as ordinances which prohibit protesting within a certain distance of a funeral. Someone may be protesting by holding a sign containing only truthful statements but would still be in violation of that ordinance. Thus their speech would be unprotected even though it is true."There's nothing actually wrong with this argument. It's a bit pedantic, though, to argue about a single over-simplification in an otherwise good op-ed, especially considering the word count limitations. It just seems douchey to write your own op-ed saying, "well, you know, actually, these two minor points that make no difference to your main point you got slightly wrong, but otherwise it was good."Three: "Here's a tangential obvious point."

Another reason not to make truth or falsity the test of protected speech is that what was once thought false might turn out to be true.

Yeah, no shit. And vice versa. That's part of the reason why it's not the test. Ball never does explain what this sentence has to do with the rest of his article, but then, he doesn't make a habit of explaining anything at all. So there it is. No, he didn't expand on this thought either. It's just this sentence sitting right after the single sentence about truthful speech sometimes being "illegal." Honestly, I'm almost embarrassed for him. The whole thing reads like an outline of a rough draft.Four: "Let me start making a point and not finish it."

There should be no doubt, however, that so much of so-called hate speech is legally protected but is nevertheless currently suppressed — especially on college or university campuses (I am a philosophy professor at Cal State San Luis Obispo). “Hate speech” has come to mean whatever political speech one hates or finds offensive.

Thanks. You're really adding to the discussion. Maybe, being a philosophy professor, Ball could have added some insight by discussing things he has observed on campus as examples of "hate speech" being suppressed. He didn't, though. He just paraphrased part of White's article and made sure everyone knows he's a philosophy professor. This adds nothing. It's as though he thought of a good point, wrote down a couple sentences introducing that point, then promptly forgot to make the point before finishing his op-ed. It's just two sentences sitting there without backing or explication or anything. I totally agree with these two sentences, by the way, but this is not how one makes a good argument.So, in sum: if you want to argue with an authority, make sure you know what you're talking about, back up your claims with evidence, keep to the point, and finish your thoughts. And that's a minimum. If you want to get beyond simply avoiding people laughing at you to start winning arguments, you'll need to start looking beyond Wikipedia for sources.

Tuesday, May 23, 2017

It is write-on week at the law school. Classes are over, grades are starting to roll in, and it's still a couple weeks until my summer internship starts. Sure, I'm spending hours each day reading cases and writing and perfecting my case note to ensure I get into Law Review next semester,* but I just don't feel I have quite enough work to do. To take a break from all the reading and writing, I'm - well, I'm doing more reading and writing. But it's on a different topic, so you know I'm not crazy or anything.
I just wanted to share some quick thoughts on some First Amendment-related stuff that's happened over the past week.

Tuesday, May 16: Turkish leader/thin-skinned Gollum Erdogan orders his thugs tobeat up protesters outside the Turkish ambassador's home in Washington, DC. So far as I know, the White House still has said nothing about this ally of ours violently attacking people on U.S. soil for exercising one of our most basic and cherished rights. Naturally, Trump is much more content to lick the boots of leaders whom he wishes to emulate than to criticize them for even the most blatant acts of violence.

Monday, May 22: Commerce Secretary Wilbur Ross praises the lack of protesters in Saudi Arabia during Trump's visit, dismissing as a "theory" that perhaps no one was protesting because such acts are punishable by beheading in our oh-so-enlightened ally's country. He stated, after the interviewer suggested that maybe no one was protesting because protesting is illegal in Saudi Arabia, "In theory, that could be true. But, boy, there was certainly no sign of it. . . . The mood was a genuinely good mood." Yes, it's very similar to the omnipresent "good mood" in North Korea. I swear those people are always so happy and smiling!

Tuesday, May 23: Arizona Governor Douglas Ducey vetoes a bill that would have extended First Amendment protections for student journalists, stating that, while he is "a strong supporter of free speech and a free press," "this bill could create unintended consequences." Lord knows what those consequences might be other than, y'know, some kids exercising their right to free speech. Sounds like Ducey is one of those people who supports only theoretical free speech.

The vast amounts of praise that Trump and those under him heap on the authoritarian leaders of the world is disturbing, to say the least. I sympathize with the fact that the President faces harsh criticism, including some that's undeserved, but that is no excuse for fantasizing about tossing out the First Amendment. It astounds me that this country has gotten to a point where we are consistently electing people who not only have a history of undermining our rights (the past... several administrations) but now aren't even pretending to like the principles our country was founded on.

The Enlightenment is almost completely dead. Postmodernism has taken over, and we all just need to hang on and keep talking until the pendulum swings back.

UPDATE: Ah, fuck. See? What did I just say? Trump was outright praising Duterte for murdering over 7,000 of his own citizens. The man is nothing more than a wannabe despot.

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* Considering my GPA and generally pretty good writing skills, I doubt this will be a problem, but there is an added incentive to write an excellent case note because the best one will be published. Needless to say, I want to be published.

Friday, May 12, 2017

This past semester, the entire 1L class has been working with a fictional case involving a woman named Brandi Williams who, when she was 17, pleaded guilty to second-degree assault for causing an accident after she and some friends threw rocks off an overpass. Now (14 years later) she can't get a promotion because of her conviction. She sought a writ of coram nobis (yes, Maryland still does that), lost, and appealed.

At the beginning of the semester, half the class was assigned to represent Brandi and the other half represented the State for the petition, then we switched sides for the end-of-semester appeal. I was on the State's side for appeal.

On the one hand, the appellate memo was easier for me being on the State's side because I had a lot of legal advantages for my argument. There were some glaring weak spots, of course, otherwise it wouldn't have been a good project, but most of the work was pretty easy. Much bellyaching was heard echoing throughout the glass and concrete maze of walkways* from the unfortunate souls who had to argue on behalf of Brandi. The rest of us mostly just made sympathetic-sounding noises. We knew how hard their arguments were to make because we had just made them a few weeks prior, except fewer points were riding on it then.

On the other hand, part of me really wants to pretend I was shocked and appalled at some of the things that had to come out of my mouth to make the argument for the State. But I've been reading blogs like Popehat long enough to know better.

The relevant argument to Ken's post was that Brandi, at 17, understood what she was pleading guilty to and understood the consequences of that plea. In truth, it's hard to believe she did. She was scared. Charged as an adult. Parents urging her to take the plea. Initially charged with a handful of things that added up to a potential sentence longer than she had been alive at that point. She was partially deaf and left her hearing aid at home accidentally the morning of the plea hearing and could only half understand what anyone was saying to her. And to top it off, her plea was on Monday - she had only just hired her attorney on Friday and he spent the weekend playing golf with the judge. It's a safe bet to say she was confused. I mean, yeah, sure, she's a fictional character, but dammit, I have an English degree. I can get into character motivations and psychology and all that shit.

Who in their right mind honestly could think that she would understand what the State had to prove to show she was guilty of assault?

But that's what I had to argue. Basically, I just had to pick a definition of assault out of a hat and insist with a straight face that it's obvious that that's what the State meant by "assault."

Easy enough.

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*I would have said "corridors," but Lego Law doesn't have too many of those.

Wednesday, February 22, 2017

This post is about this opinion article on Al Jazeera written by journalist Rachel Shabi.I'm mostly writing this to work out my own thought on the article, so bear with me here. I know she's making a very poor argument, but I'm not sure exactly where things fall apart. I also think I might agree with her ultimate point, but I'm not entirely sure right now what her point is.She says her article is spurred on by (but not actually about) this most recent Milo Yiannopoulos thing. The man of a thousand controversies has finally found a controversy that can't be ignored or explained away. Whatever. I haven't looked into it, so I really don't have an opinion one way or another. Anytime I hear his name in connection with something the only thoughts that go through my mind are, "Oh, Milo's saying stuff people don't like again. And people are getting upset about it again. Just like he wants them to. Guess he'll be a bit more popular now." Then I move on to something else.According to the headline, Ms. Shabi is discussing "the hypocrisy of free speech." Naturally, I am going to click on that headline, though from what I have heard about editorial writing, Ms. Shabi almost certainly did not write that headline and it may not be the best way to sum up anything that she has to say within her article. So, we move on from the headline and studiously ignore it, like the Victorians ignored pregnancies.

She starts by giving a synopsis of the Milo situation - he had a book deal with Simon and Schuster, and was interviewed by Bill Maher. Essentially, he was being given platforms that have now been taken away since this whole "sex with younger boys" comment that I have yet to look up or care much about. Ms. Shabi says that this is "proof" "that far-right hate speech around Muslims and minorities gets absolved in a way that nobody would dream of doing if the subject were, just by way of stark illustration, child abuse."

For now, I will carefully avoid writing several paragraphs on the phrase "hate speech" and simply substitute what I hope she meant, which is "language that clearly indicates or directly insinuates that the speaker advocates racism, sexism, homophobia, discrimination based on religion, age, fitness level, etc." Basically, it encompasses anything that indicates that someone might be inferior based on biology or religion. I will carefully not assume that she meant "hate speech" to have any legal significance until I have a clear indication otherwise.

A simplification of what she seems to be getting at here is that Milo's current seeming-downfall (which is likely another ploy to drum up his own popularity simply by making people unable to stop talking about him) "proves" that people who claim to be or are branded "conservative" (a word which no longer has any meaning whatsoever, along with it's supposed-opposite counterpart "liberal") will be welcomed to voice their opinions on a national stage if those opinions are either mostly non-controversial or the only controversy contained in the opinions are anti-minority, anti-female, or anti-Muslim.

If this is generalized one step further, such an action on the part of the news media and publishers makes absolute sense. "A private organization will often choose to allow a platform for controversial opinions, provided a significant percentage of their audience is likely to agree with those opinions." Let's say "significant percentage" means "over 10%." So, if at least 1 out of every 10 people who buy Simon and Schuster books are likely to think all Muslims should be banned from the US, a book whose most controversial statement is that all Muslims should be banned from the US will most likely be published by Simon and Schuster. Let's take it in the opposite direction politically and say that is at least 1 out of every 10 people who buy books from Simon and Schuster are likely to think that universal basic income is a good idea, then someone whose most controversial opinion is that universal basic income should be implemented immediately will most likely not be left unpublished merely for holding that opinion. The converse of this is that someone with a controversial opinion which less than 10% of an audience holds is likely to find a platform withheld. Anti-minority, anti-female, and anti-Muslim sentiments are unfortunately quite common in the US right now. Pro-child molestation sentiments are fortunately rather uncommon.

So, yes, she's right. But is this hypocrisy? Is it even a problem? I don't think so. It sounds like a prime example of the "marketplace of ideas" at work.

Ms. Shabi then says: "Those who had previously insisted we should debate the hate, not shut it down, seemed to vanish into thin air. It turns out that - who knew? - there are limits to free speech, after all, and even for the far-right."

That is an odd thing to say.

I think the thing I find most frustrating about her entire argument is that it is not based on a solid foundation of the definition of "free speech."

(The thing I find second-most frustrating about her article is that she seems to be allowing her emotions to guide her writing rather than using her writing to guide her reader's emotions. It reads like a hastily put together rough draft written while angry and distracted. Now, mind you, all my blog posts are rough drafts. I read over them once to look for typos, but no more than that. But then, I'm not being published on Al Jazeera.)

There are two legitimate ways to view the concept "free speech." First, is the legal definition. Free speech is any speech that doesn't fall within an historically-recognized category of unprotected speech. (Reminder: "hate speech," which has no legal meaning, does not fall within one of those categories. And we're extremely unlikely to make a new category anytime soon. And you don't want that to happen, anyway.) The second definition, and the one I believe Ms. Shabi is most likely invoking here, is the cultural definition. "Free speech" is a cultural norm wherein our society and the individuals within it collectively put up with people saying things we disagree with so that, in turn, people will put up with us saying things they disagree with. It is a principle underlying our culture that we allow others to speak, choosing to either debate them or ignore them if we disagree. "Allowing others to speak" does not entail providing them a platform. It merely entails refraining from preventing them from speaking. We don't "shout down" others. We reject the "heckler's veto." It has nothing to do with the government, and the only consequence for not following this cultural norm is some sort of social backlash.

There has been a lot of confusion lately about the principle of free speech. Many people have been claiming that free speech requires private entities to provide a platform. Some people even seem to be claiming that free speech requires that an individual listen to and take seriously everyone who asks for their attention. It is far from uncommon to find people on Twitter claiming that their "free speech rights" have been violated when someone refuses to debate them. Obviously, this is complete nonsense. If everyone had to stop what they were doing, pay attention to, and debate everyone who sought their attention, the entire world would come to a grinding halt.

What Ms. Shabi fails to do in her article is distinguish between these various conflicting definitions of "free speech." she fails to establish the baseline definition she is using.

Furthermore, the implications of what Ms. Shabi is saying in the above quote make no sense. Bigotry is quite common in America. To convince the large number of people who subscribe to it in one form or another that they should change requires debate. Not everyone needs to stop and debate every idiot on Twitter, but to change minds, one must discuss why one is right. If the only voices out there are those of the bigots, the bigots win. If the only thing the anti-bigots are saying against them is little more than "bigots are wrong," the anti-bigots appear to have no valid arguments on their side and therefore appear to be themselves wrong. Reasoned debate is necessary in that situation.

On the other hand, there are two reasons why it makes no sense to debate the merits of child molestation (to start with, read that sentence and hear how preposterous it sounds). First, it is an uncommonly-held opinion that child molestation is acceptable. Even many child molesters believe that it is wrong. I haven't bothered to look up any numbers here, but if a poll were done, even anonymously, I would be surprised if even 1% agreed that child molestation is OK. There is no logical reason to debate a concept that nearly everyone disagrees with. You would look insane - a Don Quixote tilting at windmills. Secondly, pedophilia is a mental disorder. You can't debate a mental disorder. You might think depression is a terrible thing and no one should ever be depressed, but arguing that people should stop becoming depressed is just plain silly.

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I would continue, but my attention span for this topic has officially run out. I might finish this at some other time, but don't count on it. If your attention span for this post has not yet run out, please continue the conversation either here or on your own blog.